2 The Authority and the Culture of the Attorney General 2 The Authority and the Culture of the Attorney General
This first chapter explores the both the legal authority and the culture that pervades offices of Attorneys General. The first assignment is to watch and “AG 101 Video” that verbally explains the entire scope what is attorneys general do and how their offices are organized.
2.1. Generic State Attorney General’s Office Organization Chart
Offices of state attorney general vary in size from California, with over a thousand lawyers, to a few who have less than a hundred. The majority run between 125 and 200 lawyers with offices located in the State Capitol. Some (New York, Maryland, California, Florida, Washington) also have major offices away from the Capitol and all have a scattering of small branch offices often necessary to fulfill specific local needs.
Regardless of the size or location, the actual functional organization of attorney general offices are remarkably similar. This Generic Organization Chart, drafted by the author, is very familiar to all attorneys general and staff and has been used for years as a guide for newly elected attorneys general as they work to understand the operations of their newly won office. While appearing deceptively simple, a careful analysis of this chart reveals both the functionality and priorities for every attorney general.
The Chart
Civil Division: The largest division in every attorney general office is the civil divison. Its attorneys represent the myriad of state agencies that provide the many services of state government. In larger states (New York, California, Massachusetts) state agencies have in-house counsel who report not to their attorney general but to the Governor’s Counsel. The attorney general generally controls office litigation. In most states, assistant attorneys general provide both in-house counseling advice and rule drafting as well as litigation support.
Crucially, in virtually all states and for almost all agencies, assistant attorneys general are the state’s litigators. As indicated in the Chart, they report up through the line of command established by the attorney general.
It is important to understand that assistant attorneys general in the Civil Division are almost always paid from the budget of the agency they represent. They also often have offices physically located within their agency. This means that assistant attorneys general, who are almost always career and serve through the administrations of multiple attorneys general, will identify strongly with that agency giving rise to “captive agency” issues when agencies disagree among themselves or with legal directives from the attorney general.
Public Protection: Public Protection Divisions were first created in the 1980’s by attorneys general anxious to take affirmative actions in the fields of consumer protection, civil rights, antitrust and charities. Public Protection Divisions are generally “unencumbered” with agency representation responsibilities and are able to focus on affirmative enforcement. The size of these divisions will directly reflect the commitment of the attorney general to the issues they are asked to handle. Assistant attorneys general in the Public Protection Division were traditionally paid from direct legislative appropriations but over the years have to come to rely on settlement money from cases they bring to fund their salaries and investigations. Almost all Public Protection Divisions return for more in settlements to the state coffers than they cost. They are “profit centers” especially on large multistate cases.
Criminal Division: All but a very few attorneys general have criminal jurisdiction that is shared to varying degrees with elected District Attorneys. The Criminal Divisions are almost always career employees with substantial trial and appellate experience. They are paid by general revenues or matching federal grants.
Rhode Island, Delaware and Alaska have no District Attorneys. All prosecution matters in these states are handled by the Attorney General.
Solicitor General Division: Almost all attorneys general now have a cadre of skilled lawyers who oversee appellate matters that arise out of the entire Office of Attorney General. A solicitor general’s division allows an attorney general to be sure that all state appellate litigation is consistent and of the highest quality. The solicitor general’s staff is able to weigh in on matters in both state and federal court that might arise from either the Civil or Criminal Division. The solicitor general also is often involved in the issuing of Formal Opinions as well as much of the increasing appearances of state government in very high profile federal challenges to the federal government. Solicitor general divisions are generally small and are paid by state general revenues.
Chief of Staff Divison: The Chief of Staff Division supervises the non-legal aspects of the entire Office. The Chief of Staff, who is always personally close to the attorney general and may not be a lawyer, is responsible for the budget, media outreach, interest group consultation, legislative relations and for overseeing various initiatives of the attorney general. Because forty-three attorneys general are elected statewide and all have partisan ties, it is the Chief of Staff who keeps the public priorities of the attorney general before the public.
Chief Deputy: Other than the attorney general, the Chief Deputy is by far the most important person within any Office of Attorney General. The Chief Deputy reports directly to the attorney general on all of the Office’s activities and must often mediate among staff members with differing legal conclusions and priorities. The Chief Deputy is also the person most likely to deal with the Governor, legislative leaders, the Congressional delegation and the Judiciary.
The jurisdiction of attorneys general is so broad and the stakes often so high that it essential that the Chief Deputy be a lawyer with significant administrative skills while having the complete confidence of the attorney general.
Multistate: The Chart depicts the functionality of virtually every Office, It also provides a key tool for analyzing how attorneys general are interacting nationally. Attorneys general know all of their colleagues, but so too all chief deputies, solicitors general, and public protection division chiefs know and work closely with similarly tasked assistant attorneys general around the country. Understanding the organization chart is therefore critical in understanding the actions both within their state but also nationally.
2.2 Wilson, Paul E., A Time to Lose, Representing Kansas in Brown v. Board 2.2 Wilson, Paul E., A Time to Lose, Representing Kansas in Brown v. Board
In 1952, a young Kansas Assistant Attorney General by the name of Paul Wilson was ordered by his then attorney general to submit a brief on behalf of the Topeka Board of Education and the State of Kansas in Brown v Board of Education of Topeka, 347 U.S. 483 (1954). He was then ordered to travel to Washington, D.C. to argue the case. It was Wilson’s first appellate argument.
Forty years later, Wilson, by then a Professor Emeritus at the University of Kansas Law School, penned a touching memoir of that experience. Entitled “A Time To Lose, Representing Kansas in Brown v. Board of Education,” he dedicated the book his wife and children “who believe I was on the wrong side.”
This edited section of the memoir stands in stark contrast to the Mondale section in that it squarely presents to today’s readers the reality that representing the government does not always mean being on the right side of history. Every student should ask herself if they would have accepted the assignment to argue a position in opposition to their personal beliefs. The section also reveals what while Morrison’s brief and litigation decisions were consistent with the holding in Plessey, they also put distance between Kansas and the harsh segregationist position argued the same day by Virginia, revealing that there are many ways to defend state government.
2.3. State of the Statehouse: Zoeller leaves attorney general role with legacy in public health By Maureen Hayden | CNHI State Reporter | INDIANAPOLIS Dec 25, 2016
Greg Zoeller served for eight years as the Attorney General of Inidiana after previously serving six years as the Chief Deputy for his predecessor. This candid 2016 exit interview reveals some of the personal aspects of serving as a state attorney general.
2.4 Question One 2.4 Question One
Paper 1: Authority, Culture and Role of State Attorneys General
Question One.
In January 2020, you were sworn in as the new AG of your chosen state.
In your campaign for AG, you spent a lot of time discussing policies of the Trump Administration and how they impact your state, Areas like public health, the environment, consumer protections, and civil rights for immigrants and the LGBT community, all have been impacted. You committed in multiple debates and public appearances to push back (or to support, depending on your state) in legal action regarding these policy changes and believe that your election was a mandate to do just that. You made it very clear to whoever was listening that your first order of business would be to implement your commitment.
Legislative leadership is not in a giving mood with the pandemic and sagging economy, so you expect no additional funds. You will have to reorganize the office with existing people and budget. (In this restrained budget environment, you would be well advised not to tamper with revenue gathering parts of the Attorney General’s office (forthwith ‘AGO’)).
Given the fast track of federal regulatory changes, you are sure it will take a significant group of highly experienced litigators to staff the new division. The year is more than half over and the new function has not yet been implemented. Members of the Press are wondering what happened to your campaign promise.
Question for this assignment. What are the legal and practical limitations on the power of a state Attorney General? To help you deal with this overarching issue, I offer a few specific questions below. It would be wise if your answer tries to deal with these specific questions but feel free to examine the question from other perspectives that you think relevant. You may put your answers in any order that fits the overall organization of your answer.
1. How many attorneys and staff does your chosen state AGO have. What are its major fund sources?
2. What are your various options for setting up this new function?
What resources inside and outside the AGO might be brought to this challenge?
4. Where could you turn for advice?
5. Do you even have the power to make a major structural change?
6. What functions of the office will you cut so you can staff the new function? Please be specific, using the org chart from your chosen state if you can find it on their website or, if that proves illusive, use the Arizona or the general org chart. You must make cuts/changes. Please don’t say that the new positions will be funded by “increased revenue from settlements” or from “administrative efficiencies”. That will not happen.
7. Would it be wise to reconsider this commitment, especially at the very beginning of your term before you have evaluated the other demands on your office resources? Or, at the least, postpone it until the Covid crisis is past? What price if any will you have to pay if you do not set up the new function? Inside the AGO? With the Press/Public.
8. At your press conference announcing the formation of the new division and your new team’s first legal action, will you support or oppose Federal action (not you personally, but your chosen AG considering his/her history and partisan allegiance?) How will you support or oppose Federal policy?
9. In the face of intense Press questioning, how do you justify this change?
Please write not less than 350 words discussing these points and submit to me by email to goddardlaw502@gmail.com by noon September 1.
Discuss and cite to the assigned readings to support your positions. You may also call on personal experience, material from other courses and any additional research but as a supplement to the assigned reading, not as a substitute. You are responsible for knowing what is in the reading. Be sure to cite to any authority, be it from the assignments or elsewhere. Footnote form is not required, enough to use parenthesis () with the name of the source with the date and page number if applicable.